SCANDALOUS: LAKEWOOD PLANNING BOARD CHANGES THEIR VOTE AND APROVES PREVIOUSLY DENIED CHESTNUT STREET PROJECT

In quite a shocking development, following their previous denials of Yanky Lipshitz's Chestnut Holdings application, the Lakewood Planning Board on Tuesday night reversed course and approved the application.

The current version of the proposal - which is his 6th attempt to secure an approval at this site off Chestnut Street across from Evergreen Avenue - is for 13 duplex units (26 dwelling units plus basement apartments, for a total of 52 duplex dwelling units) and a playground.

Board Chairman Moshe Neiman claimed that the reason for changing the vote is that the application is fully conforming and a denial would be beyond the Board's jurisdiction.

In coming to this conclusion, the Board ignored a letter they received prior to the public hearing from Attorneys Joseph Perlow and Avi Yankelewitz Esq. - who are representing Chestnut Street residents. The letter argues that the Planning Board lacks jurisdiction to hear the application as the application requires a maximum density variance which only the Zoning Board can grant. (This is because the parcel is 3.7 acres and the maximum density for duplex units in this zoning district is 8 units per acre, accordingly the maximum density is 29.6 units whereas this application proposes a total of 52 units including the basement apartments).

Oddly, although the Board came to the very same conclusion that basement apartments count as separate units regarding the open space requirement, regarding this matter of basement apartments counting as separate units regarding the maximum density, the Board turned to their engineer Terry Vogt for guidance. Mr. Vogt in turn deferred to Brian Flannery, the applicant's engineer for guidance. Mr. Flannery quoted from a completely separate ordinance that concludes that basement apartments don't count as separate units for maximum density for townhouses. The Board accepted this interpretation as a basis to say that this application did comply with the maximum density.

However there is no such stipulation regarding duplexes for which this application seeks approval.

Mr. Neiman also stated that we shouldn't be busy with counting basement apartments as separate units towards the maximum density as "we never dwell into such considerations."

This argument is misplaced as the HD-7 zoning district is one of only a few zoning districts in Lakewood which have a maximum density ordinance.

Yet another oddity at this public hearing is that Board Attorney John Jackson Esq. attempted to advise the Board that they needed to change their vote because their previous denial was "overturned as arbitrary by Judge Hodgson." In actuality, Judge Hodgson agreed that the Board has latitude to interpret the open space ordinance to count basement apartments as separate units. The only reason the judge did vacate the resolution of denial is because it didn't mention the design waivers that the application sought.

Seems everyone up there was super anxious to change the vote to an approval.

Moshe Neiman, Yechiel Herzl, and Bruce Stern voted to approve. Moshe Luwish and Shimie Weiss abstained from voting.

Prior to voting the Board attempted to bar public comments. Luckily their attorney reprimanded them that "no can do!" At that point Mr. Neiman told Mr. Hirsch that he has "a minute and a half" to speak.

Mr. Hirsch spoke briefly, correcting Mr. Neiman as to what actually occured in court.

Another neighbor objected to the application on traffic safety concerns.

Yet another neighbor stated that she did not receive the statutorily required legal notice regarding the public hearing.

The Board simply waived away these concerns and approved the application.

This project has quite a contentious history. In fact, this is the developers' 6th attempt to secure an approval at this site!

Back in June 2022, Jacob Lipshitz and Hersh Eissenberg of Chestnut Holdings NJ LLC submitted Application ZB 4235 to the Zoning Board to construct a cul-de-sac bulb with 14 duplex structures (28 dwelling units).

The application notice, published by Attorney Sam Brown of The Brown Law Firm stated that the new duplexes were a permitted use, and the only reason the application was submitted to the Zoning Board was because it included a single family home which currently exists, and is to remain, in the HD-7 zone where single family homes are not a permitted use.

However, as exposed here on FAA News, this was fake news.

The 4.65 acre site included Block 1077 Lots 43, 51, and 52, which are indeed located in the HD-7 zone, however, the rear yards of one side of the proposed homes cross into Lot 1 which is in the R-12 zone which does not permit duplexes. Accordingly, the application required a Use Variance - for which the applicant did not notice, thus the Board lacked jurisdiction to hear the application.

Following this exposure on FAA News, as previously reported here on FAA News, at the Board's public hearing in July 2022, neighbors opposed consideration of the application due to the jurisdictional issue. Board Attorney Jerry Dasti concurred, and Attorney Zev Brown agreed to renotice for a Use Variance application.

The application returned to the Board in September 2022. As previously reported here on FAA News, Board Chairman Abe Halberstam argued that he is concerned that the driveways of the 4 duplexes at the front of the Subdivision are very close to Chestnut Street, which will lead to too much congestion at the entranceway to the development where the boulevard will go.

Chestnut Street area resident Aaron Hirsch additionally opposed the application, noting that there was no proposed shul and the local shuls are already full.

Mr. Halberstam agreed that he wants to address the neighbors' concerns, and therefore this development - if it does come back to the Board - should eliminate the front units to make room for a proper bus stop, and also, a shul and playground should be provided.

At that point, realizing that they were facing a denial, which would prejudice them from returning with a slightly amended application, Mr. Brown formally withdrew the application.

As the news was broken here on FAA News, rather than redesign their project to provide a shul and playground, the developers cut out the "forbidden R-12 area" from the project, thus precluding any need to return to the Zoning Board. 

Instead, they submitted an application to the Planning Board for only 26 units. As each lot was redesigned to contain exactly 8,500 sq feet, the application did not require any bulk variances.

At the Board’s first hearing on the application, the Board expressed concern with the number of units all squeezed onto one cul-de-sac with no secondary access road. The Board stated that it appeared that the application did not comply with the state’s RSIS requirements of providing a secondary access road for developments with more than 25 units.

Ultimately, the developers returned to the Board with a letter from RSIS which indicated that a secondary access road was not required. 

Yet, thanks to heavy opposition from the neighbors the Board continued to pushback against the application, telling the applicants that they needed to provide a playground. 

After continued pushing from the Board and neighbors, the applicant's professionals offered to eliminate one house (i.e. one side of a duplex unit) to provide open space for the new development. The Board did not waiver, but rather insisted that they can not approve the application without an actual shul and playground, and without the boulevard being extended all throughout the entire roadway. 

Amazingly, just at that point the Board reinterpreted the Township's Open Space Ordinance to count basement apartments as a separate unit. Based on this new interpretation, the Board found that the Chestnut Holdings application did not comply with this Ordinance as it did not provide open space for 56 units. 

After the applicant refused to provide an actual shul and playground, the Board declined to grant a design waiver to provide relief from providing the required Open Space, and voted to deny the application.

Subsequently, as previously reported here on FAA News, the developers, represented by Attorney Adam Pfeffer Esq., filed a lawsuit seeking to overturn the Board's denial.

At trial, Board Attorney John Jackson emphasized to Judge Hodgson the importance of open space in Lakewood, and that "a certain quality of life in the town that cannot be ignored simply because an applicant seeks to provide for double the amount of people in a development."

Mr. Pfeffer argued that he disagreed with the Board's reinterpretation of the open space requirement, and that the developers did offer at the public hearing (and are still willing to offer) to dedicate one lot for open space based on the calculations of 28 units - but not based on 56 units.

Judge Hodgson brushed him off saying that the Board does have the legal right to interpret the Township's ordinances and in this case the Board properly determined that this is considered 56 units for the purposes of counting open space.

Mr. Pfeffer tried arguing that as far as "zoning" is concerned this is only a 28 lot subdivision. He added that "there is no guarantee that the future homeowners will use their basements for separate apartments. I know plenty of people who have large families and use their basements for their own families." Judge Hodgson pushed back, saying that the Board does have leeway to interpret the basement apartments in terms of the open space requirement even though in terms of "zoning" this may be only a 28 lot subdivision.

Accordingly, Judge Hodgson declined to toss out the Board's denial of the application. 

(This ruling has major ramifications for Lakewood. Going forward, developers will not be able to challenge the planning board's determination on the matter.)

Facing this court ruling, back in April 2024, the developers returned to the Board seeking approval for 13 duplex structures (26 units plus basement apartments) and a 8,191 sq foot playground which will be dedicated to a HOA.

Area residents including Aaron Hirsch again urged the Board to deny the application due to traffic congestion and the lack of a shul.

As previously reported here on FAA News, thanks to this continued pressure, the Board held strong and voted 3-2 to deny the application.

However, weeks later, when it came time to adopt the Resolution of Denial, Chairman Moshe Neiman (who was one of the "no" voters) announced that he wanted to reconsider and change his vote to a "yes."

Mr. Pfeffer was delighted.

The Board deliberated whether it was appropriate to change the vote with no notice to the public who had previously come out strongly in opposition to the application.

Ultimately, the Board decided to reschedule the matter as a reconsideration hearing after the neighbors receive notice.

The matter was again adjourned at the last hearing due to lack of a quorum for this application.

The Board has now reversed course and approved the application.

The neighbors have 45 days after the Board adopts the Resolution to file a lawsuit in court.

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